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Acquisition of National Territory Should be Done for Enumerated Constitutional Reasons as Happened in the Case of Oregon
Andrew Hyman

John Vlahoplus recently blogged here in favor of the federal government generally having “inherent sovereign rights under international law.”  I agree that the federal government has many of those rights but not necessarily all of them.  

The context of this current discussion is territorial acquisition, so my paragraphs below will stick to that subject, but first a couple general thoughts.  The Constitution is very careful about the law of nations.  It does not give Congress general power to effectuate or implement the law of nations, but only power to “define and punish…Offenses against the Law of Nations.”  So people should be cautious about inferring a more general power.  If the federal government does have general power under the law of nations, then the most logical place for it would be as part of the treaty power, rather than by statute.  Mike Ramsey has written that “the Constitution's original meaning most likely did not include subject matter limitations on treaty-making.”  If he is right about that, then the federal government does have all the power that John Vlahoplus attributes to it (and more), but only through the treaty power.  I have expressed skepticism about Mike’s view, but he may be right.

John Vlahoplus mentions Oregon in four of his five paragraphs, so let’s consider the acquisition of Oregon.  Oregon used to be much larger than the state of Oregon is now.   The Anglo-American Convention of 1818 established a stalemate in Oregon with the British, so that disputed areas were opened to the people of both countries until the Oregon Treaty of 1846.  That treaty definitively secured Oregon in the possession of the United States, and two years later Congress established the Oregon Territory.  Section 14 of the 1848 Act extended the old Northwest Ordinance of 1787 over the new territory.  Among other things, the old Ordinance had said that it would:

provide also for the establishment of States, and permanent government therein, and for their admission to a share in the federal councils on an equal footing with the original States, at as early periods as may be consistent with the general interest….

So it appears that, within two years of the acquisition of Oregon, Congress made very clear that its lands were destined for statehood.  To my mind, this places the burden of proof on anyone who asserts that Oregon was not destined for statehood from the day those lands were acquired by the United States.  Thus, the acquisition was authorized by the congressional power to admit new states, combined with the Necessary and Proper Clause.  There’s no need to infer any inherent sovereign rights under international law, or to rule out subject matter limitations on treaty-making, in order to justify the Oregon acquisition.  The President and Congress simply followed the enumerated powers.  Even putting aside the power to admit new states, Congress wanted to enhance the fur trade, so the acquisition of Oregon was arguably supported by the commerce powers enumerated in the Constitution, although the power to admit new states seems like the most obvious basis for that acquisition.